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 May 5, 2008 Monday

SECTION: Pg. 10003

LENGTH: 691 words

BYLINE: BRIAN MACKEY

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SPRINGFIELD -- The Illinois Supreme Court has been asked whether the prohibition on jury trials in proceedings to terminate parental rights violates the Illinois Constitution.

In a petition for leave to appeal, Diana Benavides challenges decisions that have held the Constitution's "inviolate" right to a jury trial did not apply to statutory proceedings -- specifically those that did not exist at common law when the Constitution was adopted -- like termination of parental rights and adoption.

Benavides, who is represented by St. Charles attorney Sheldon Bart Nagelberg, contends that proceedings to terminate parental rights have their origins in English common law that predates the Illinois Constitution of 1870.

"Review by this court is necessary to resolve a matter of historical jurisprudence to which the appellant in her briefs has devoted research, yet was bypassed by the Appellate Court in its judgment without investigation, analysis or comment," the petition contends.

Benavides gave birth to S.J. and K.J. respectively in 2000 and 2002. According to the petition, a Cook County judge in 2003 found her unfit on the grounds that she gave birth "in a drug exposed condition" causing the children to be born with narcotics in their bodies. S.J. and K.J. were made wards of the state.

Two years later, the state sought to terminate Benavides parental rights so the children could be adopted, alleging she failed to maintain a reasonable degree of interest in the kids' welfare, was a drug addict and did not make reasonable progress toward getting her kids back within nine months of the original neglect finding.

Benavides made an unsuccessful jury demand, and after a trial that spanned six court dates between Aug. 31, 2006, and July 24, 2007, the judge terminated Benavides' parental rights.

The judge found the state had not proven Benavides was not interested in her kids' welfare or was a drug addict, but did find that she failed to make reasonable progress toward their return within nine months of the neglect finding.

On March 19, 2008, the 1st District Appellate Court affirmed that outcome. Justice Patrick J. Quinn wrote the published opinion with Justices Alan J. Greiman and Joy V. Cunningham concurring.

Quinn wrote that Benavides argument had already been rejected by the Appellate Court in In re Weinstein, 68 Ill.App.3d 883 (1979), which held that proceedings under the Juvenile Court Act and the Adoption Act did not provide for a jury trial.

"Further, as this court acknowledged, proceedings under the Juvenile Court Act and Adoption Act were created by statute and were unknown at common law," Quinn wrote.

The Supreme Court, he noted, has held that the Illinois Constitution's guarantee of an "inviolate" right to jury trials was limited to the common law at the time the 1970 constitution was adopted. People ex rel. Daley v. Joyce, 126 Ill.2d 209 (1988).

"Conversely, the constitutional right to a jury trial does not apply to statutory proceedings that were unknown at the common law at the time of the adoption of the 1970 constitution," Quinn wrote. People ex rel. O'Malley v. 6323 North LaCrosse Avenue, 158 Ill.2d 453 (1994).

In her petition to the high court, Benavides contends that, "without any historical analysis or foundation the Appellate Court paints with a broad brush in implying that all `proceedings' under the Juvenile Court Act and Adoption Act were created by statute and were unknown at common law."

The petition contends that the part of the Juvenile Court Act that deals with parental rights has its origins in English common law and other state court decisions that predate the Illinois Constitution of 1870.

Among other connections, the petition draws its contentions by linking the fact that parties in English Chancery courts had a prima facie right to a jury trial with the Chancery courts' role as executor of the crown's duty of parents patriae -- caring for infants who were otherwise uncared for. A Concise Treatise On The Practice And Procedure In Chancery Actions, Third Edition, 1883, and A Treatise On The Law And Practice Of Infants, 1875.

The case is In re K.J. and S.J., No. 106415.

LOAD-DATE: May 6, 2008